TO: Joint Procedure Committee
FROM: Mike Hagburg
DATE: April 10, 2014
RE: Rule 26, N.D.R.Crim.P., Taking Testimony
Chief Justice VandeWalle has requested that the committee discuss a possible rule requiring the court to conduct a colloquy when a criminal defendant decides to waive the right to testify.
The current standard in North Dakota is that no inquiry is required when a defendant chooses not to testify: "the court is entitled to presume the attorney and the client discussed the right, and the defendant voluntarily agreed upon the final decision." State v. Antoine, 1997 ND 100, ¶ 5 (copy attached). Despite this presumption, defendants regularly raise the issue of non-waiver on appeal and in post-conviction relief proceedings. The Chief suggested that requiring some documentation of a waiver might be appropriate.
As stated in Antoine, the right of a defendant to testify has been established to be a constitutional right under the Fifth Amendment. The U.S. Supreme Court, however, has not set out a constitutional standard for waiver of this right. Therefore, other courts, like ours, have developed their own standards, many of which are discussed in 72 ALR 5th 403.
The ALR shows that requiring a colloquy on a defendant's waiver of the right to testify is very much the minority approach: Alaska, Colorado, Hawaii, South Carolina, West Virginia and Wisconsin seem to be the only states that have definitely adopted this position. Other states have conceded that a colloquy may be needed when a defendant is unrepresented or when certain conditions such as an attorney-client conflict exist. Staff has been unable to locate any court rule that establishes a standard for a waiver of testimony colloquy.
Proposed amendments to Rule 26 are attached, adding a new subdivision requiring a waiver colloquy. This seems like an appropriate place to put this provision because it is the rule on taking testimony in criminal cases. The colloquy language is based on language from State v. Weed, 666 N.W.2d 485 (Wis. 2003) (copy attached). In this case, the Wisconsin Supreme Court decided to make it clear that a colloquy was needed. The court conceded that the colloquy requirement had been adopted by only a minority of jurisdictions, but that because of the fundamental nature of the right, "there is sufficient justification to require an on-the-record colloquy." Id. at ¶ 41.